Excerpt:.....of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- 520 of the punjab government gazette dated the 29th april 1955, clearly sets out the area to be acquired and it also states that the plan of the area has been put up in the office of the collector for inspection. there is no provision in the act like section 49 which prohibits the government from acquiring a part of an agricultural field or holding......award was without jurisdiction. for this, reliance was placed on bhagwandas nagindas v. special land acquisition officer, 28 ind cas 489 : (air 1915 bom 15). following this decision, the senior subordinate judge has set aside the entire proceedings. the government has come up in appeal.2. the short question for determination is whether the acquisition beyond what was notified, to be acquired would make the entire acquisition proceedings invalid. after hearing the learned counsel for the parties, i am of the view that the decision of the senior subordinate judge cannot be sustained either on principle or on authority. so far as the decision of the bombay high court in bhagwandas nagindas' case 28 ind cas 489 : (air 1915 bom 15) is concerned, it has no application. in that case part of.....

Judgment:

D.K. Mahajan, J.

1. This is an appeal under the Land Acquisition Act against the decision of the Senior Subordinate Judge, Hissar under Section 18 of that Act The matter has arisen thus.

By notification dated the 31st March, 1953, Government acquired land in village Uklana measuring 28.11 acres for Fatehabad branch of Bhakra canals. Notification under Section 6 of the Act was issued on 19th April, 1955. The Collector made his award on 15th December. 1955 and allowed compensation amounting to Rs. 4406/9/11 at the rate of Rs. 158/- per acre only for 27.89 acres. In addition he allowed 15 per cent on account of compulsory acquisition. The owners of the land moved the Collector for reference under Section 18 of the Act to the District Judge. Reference was accordingly made and it came up for determination before the Senior Subordinate Judge at Hissar. Before him, the argument raised was that as the notification was for acquisition of 28.11 acres and actually land measuring 30.49 acres had been acquired, the whole proceedings were vitiated and therefore the award was without jurisdiction. For this, reliance was placed on Bhagwandas Nagindas v. Special Land Acquisition Officer, 28 Ind Cas 489 : (AIR 1915 Bom 15). Following this decision, the Senior Subordinate Judge has set aside the entire proceedings. The Government has come up in appeal.

2. The short question for determination is whether the acquisition beyond what was notified, to be acquired would make the entire acquisition proceedings invalid. After hearing the learned counsel for the parties, I am of the view that the decision of the Senior Subordinate Judge cannot be sustained either on principle or on authority. So far as the decision of the Bombay High Court in Bhagwandas Nagindas' case 28 Ind Cas 489 : (AIR 1915 Bom 15) is concerned, it has no application. In that case part of the land acquired obviously formed part of a house, manufactory or other building and the owners could object to part acquisition in view of Section 49(1) of the Act. That was not a case where part of a field number of agricultural land was acquired or acquisition was made in excess of the area notified to be acquired. It was common ground in that case that part could not be acquired and the whole of it had to be acquired in terms of Section 49, which is quoted below for the purposes of convenience :

'49. (1) The provisions of this Act shall not be put in force for the purpose of acquiring a Part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired:

Provided that the owner may, at any time before the Collector has made his award under Section 11, by notice in writing, withdraw or modify his expressed desire that the whole of such house, manufactory or building shall be so acquired :

Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act docs or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer thedetermination of such question to the Court and shall not take possession of such land until after the question has been determined.

In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.

2. If, in the case of any claim under Section 23, Sub-section (1), thirdly, by a person interested on account of the severing of the land to be acquired from his other land, the Appropriate Government is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part.

3. In the case last hereinbefore provided for, no fresh declaration or other proceedings under Sections 6 to 10 both inclusive shall be necessary; but the Collector shall without delay furnish a copy of the order of the Appropriate Government to the person interested and shall thereafter proceed to make his award under Section 11.'

The Collector in that case accepted the contention of the owners and proceeded to assess compensation for the entire land but without getting the Government to declare its intention to acquire the entire land. It is in this situation that the Bombay High Court in Bhagwan Das's case 28 Ind Gas 489 : (AIR 1915 Bom 15) held the whole proceedings were ultra vires and illegal. Thus it is clear that this decision has no application to the facts of the present case. In the instant case we are not concerned with any type of Property specified in Section 49. We are concerned with agricultural land. The notification, which is printed at p. 520 of the Punjab Government Gazette dated the 29th April 1955, clearly sets out the area to be acquired and it also states that the plan of the area has been put up in the Office of the Collector for inspection.

The land was acquired in accordance with the plan. Therefore, acquisition proceedings to that extent are valid. There is no provision in the Act like Section 49 which prohibits the Government from acquiring a part of an agricultural field or holding. If the contention, which prevailed with the Senior Subordinate Judge is allowed to prevail, part of agricultural land out of a large field or a holding can never be acquired. This will lead to absurd results. There is no rationale on the basis of which such an acquisition can he held to be not justified. The principle underlying Section 49 has no application to such a case.

3. The other contention raised is that as plan. Therefore, acquisition proceedings to that been acquired the entire acquisition will be illegal and of no consequence. This contention also has no force. The acquisition to the extent of what is specified in the notification would be valid but beyond that would certainly be unauthorised, and would not in any way confer any title on the Government.

4. The next contention advanced is that the Collector was in error in allowing compensation for 27.89 acres whereas notification acquiring landmeasuring 28.11 acres and in fact possession has been taken of 30.49 acres. This appears to be so. The Senior Subordinate Judge should allow the respondents compensation for the entire 28.11 acres and declare the acquisition beyond this as illegal.

5. For the reasons given above, the decision of the Senior Subordinate Judge is set aside and the case is remanded to him for decision in accordance with law in the light of the observations made above. There will be no order as to costs of these proceedings. The parties are directed to appear before the Senior Subordinate Judge on 24th April, 1961, for further proceedings in the reference. Case remanded.